Health and Social Care Bill, Committee Stage, House of Lords
Regulation of the Medical Profession - standard of proof
(Clause 107) (This document applies to the UK)
The BMA does not believe that the proposal to change the level of proof in fitness to practise proceedings from the criminal to civil standard has proven merit, nor does the proposal command the confidence of doctors.
The prime objective of any regulatory system for the medical profession should be to protect patients and to identify and deal appropriately with doctors with performance difficulties. The vast majority of doctors perform well and safely, and acknowledge that it is imperative that patients are protected from the small number of unsafe doctors. The BMA therefore fully supports measures that promote excellence in medical practice and that help to detect and prevent instances of poor standards, negligence or criminality among doctors.
Some improvements to the regulation of the medical profession are needed, but any reform must be workable in practice and maintain a system in which both the public and doctors can have confidence that fairness and justice will be delivered. The greatest protection for the public is to have a system where doctors feel able to admit to faults or failings in themselves and colleagues, confident in the knowledge that these will be dealt with in a fair, sensitive and supportive manner.
Standard of proof
Following a consultation exercise in August 2007, the General Medical Council has taken the decision to implement changes to the Fitness to Practise Rules 2004. The change requires Fitness to Practise panels to use the civil standard of proof (the balance of probabilities) when they are making decisions on disputed facts. The General Medical Council currently uses the criminal standard (beyond reasonable doubt). The GMC has the legal basis on which to make this change through a new Rule and it is expected that the change will come into force on 31 May 2008. Clause 107 of the Bill imposes the requirement for all regulatory bodies and the new Office of the Health Professions Adjudicator to use the civil standard of proof in fitness to practise proceedings.
The BMA has serious reservations about the introduction of the new standard and the civil standard does not command the confidence of doctors. The BMA’s opposition to this move is on the grounds that it would be an injustice to remove a doctor’s livelihood based on a lower standard of proof than is used currently. The move would not only be unfair to doctors but may compromise their clinical independence with consequent risks to patient care. The BMA also believes that a lesser standard of proof could result in unjustified, adverse findings against doctors and that application of the criminal standard should be maintained when a decision is being made that would prevent a doctor from working (1) in cases in which doctors are suspended or erased from the medical register, and (2) in cases where conditions on a doctor’s registration would, in effect, prevent him/her from working. The BMA is also concerned that the Government and the GMC have not put forward any evidence to show that the change to the standard of proof will improve the process to protect patients from dangerous or incompetent doctors.
Safeguards
The BMA has expressed doctors’ strong reservations about the change to the standard of proof to the GMC, the Department of Health and politicians. Now that the change is about to be made, the BMA’s priority is to ensure that it is shown to be, as the GMC believes, “consistent with protecting patients and the public interest and is, at the same time, fair to doctors. (Reference 1)
The BMA therefore calls for the following safeguards:
- GMC panel members and, later, those of the Office of the Health Professions Adjudicator (OHPA), are given appropriate guidance and training.
- Measures are put in place to protect doctors against malicious claims or innuendo.
- Decision making should be transparent. In relation to this, although there is no statutory duty on a fitness to practise panel to give written reasons, good practice normally requires reasons to be given. Therefore, we urge the GMC and OHPA to impose a requirement upon fitness to practise panels to provide written reasons for their decisions, setting out their principal findings of fact and the reasons for reaching them.
Background on Fitness to Practise panels
Fitness to Practise panels hear evidence and decide whether a doctor’s fitness to practise is impaired. The GMC currently runs these panels but, should the legislation be passed, in future the new Office of the Health Professions Adjudicator will carry out the function of adjudication of such cases.
Panel hearings are the final stage of the GMC’s procedures following a complaint about a doctor. Panels of 3 – 5 medical and non-medical members are appointed by the GMC. In addition to the Chairman, who is not necessarily medically qualified, there must be at least one medical and one non-medical member on each panel. A legal assessor sits with each panel and advises on points of law and of mixed law and fact, including the procedure and powers of the panel.
The GMC is normally represented at the hearing by a barrister. The doctor is invited to attend and is usually present and legally represented. Both parties may call witnesses to give evidence and if they do so, the witness may be cross-examined by the other party. The panel may also put questions to the witnesses.
Once the panel has heard the evidence, it must consider three matters: whether the facts alleged have been found proved; whether, on the basis of the facts found proved, the doctor’s fitness to practise is impaired; and if so, whether any action should be taken against the doctor’s registration. The application of the standard of proof applies only to the first of these questions.
In deciding on the appropriate sanction, which could be from taking no action to erasing the doctor from the Medical Register, the panel must have regard to the Indicative Sanctions Guidance. Doctors have a right to appeal to the High Court against any decision by a panel to restrict or remove their registration. The Council for Healthcare Regulatory Excellence may also appeal against certain decisions if they consider the decision was too lenient.
Reference:
1. ” GMC’s “Standard of proof, frequently asked questions” document (April 2008)
For further information please contact the Parliamentary Unit. Email parliamentaryunit@bma.org.uk